Tuesday, February 24, 2015

New DOL Regs for Same-Sex "Spouse" Under FMLA

Tomorrow, the Department of Labor will publish a Final Rule to Revise the Definition of “Spouse” Under the FMLA (including links to additional information). Per the DOL, the "major features" are:

  • The Department has moved from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA regulations. The Final Rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122(b) to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live. 
  • The Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.
Of course, this may become irrelevant in the not-too-distant future if the Supreme Court recognizes a right to same-sex marriage across all 50 states.


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